Setsuko AOKI

1. 23 April 2007 Collective Security in Space: Asian Perspectives Panel II Perspectives on Space SecuritySpace Security of Asia from the Perspective of International Space Law Setsuko AOKI Professor, Faculty of Policy Management, Keio University aosets@sfc.keio.ac.jp

2. Table of Contents 1 what is space security ? 2 current status of international space law on space security 3 Asian perspective: What can be done for the next 5 years

3. 1 What is Space Security？ For the purposes of this presentation, “space security” refers to “the secure and sustainable access to and use space, and freedom from space-based threats” (from a statement of Canadian delegation at 44th session of the Scientific and Technical Subcommittee (STSC) of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) 21 Feb. 2007) Canada maintains the necessity of “rules-based behavior in space”.

4. “Space Security” and “Space Safety” Space Traffic Management (STM) means “the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from outer space to Earth free from physical or radio-frequency interference”. Space safety at the COPUOS ? Space security at the Conference on Disarmament (CD)? Holistic approach needed ? No consensus reached in the international fora

5. 2 Current Status of International Space Law on Security (1) UN Space Treaties on Outer Space (2) Arms Control Agreements (3) Legal Instruments of Laws of Armed Conflicts ←USAF “Counterspace Operations” (2004)

6. (1) UN Treaties on Outer Space 1967 Outer Space Treaty (OST) 99 1968 Rescue Agreement 89 1972 Liability Convention 82 1975 Registration Convention 46 1979 Moon Agreement 13

7. para. 1 of the Article IV of the OST States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.

8. para. 2 of the Art. IV The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden.

9. The Moon Agreement Scope of the “Moon” Art.1 (1) other celestial bodies within the solar system (other than the Earth) (2) orbits around or other trajectories to or around the (astrological) Moon

10. Art. 3 of the Moon Agreement (strengthened peaceful uses) 1. The Moon shall be used by all States Parties exclusively for peaceful purposes. 2. Any threat or use of force or any other hostile act or threat of hostile act on the Moon is prohibited. It is likewise prohibited to use the Moon in order to commit any such act or to engage in any such threat in relation to the Earth, the Moon, spacecraft, the personnel or spacecraft or manmade space objects.

11. (continued) 3. States Parties shall not place in orbit around or other trajectory of the Moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the Moon. 4. The establishment of military base, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the Moon shall be forbidden.

12. (2) Arms Control AgreementsPartial Test Ban Treaty (PTBT) (1963) Art. 1 Parties to the PTBT undertake to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control; (a) In the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas;

13. ABM Treaty (1972-2002) Art. V 1 Each Party undertake not to develop, test, or deploy ABM systems or components which are sea-based, space-based, or mobile land-based.

14. Confidence building provisions in arms control agreements which are applicable to space-based monitoring 1972 Art.12 of the ABM Treaty 1972 -77 Art. 5 of the SALT I 1987 Art. 12 of the INF 1990 Art.14,15 of the CFE Treaty 1991 Art. 9 of the START I 1993(- terminated while not into effect) Art. 4 of the START II

15. National Technical Means of Verification (NTMs) 1. For the purposes of providing assurance of compliance with the provisions of this Treaty, each Party shall use national technical means of verification at its disposal in a manner consistent with generally recognized principles of international law. 2. Each Party undertakes not to interfere with the nationaltechnical means or verification of the other Party operating in accordance with para.1 of this Article. 3. Each Party undertakes not to use deliberate concealment measures which impede verification by national technical means of compliance with the provisions of this Treaty. ---

16. CFE Treaty :Multilateral technical Means of Verification 1. For the purpose of ensuring verification of compliance with the provisions of this Treaty, a State Party shall have the right to use, in addition to the procedures referred to in Article XIV, national ormultinational technical means of verification at its disposal in a manner consistent with generally recognized principles of international law. 2. A State Party shall not interfere with national or multinationaltechnical means of verification of another State Party operating in accordance with paragraph 1 of this Article. 3. A State Party shall not use concealment measures that impedeverification of compliance with the provisions of this Treaty bynational or multinational technical means of verification of anotherState Party operating in accordance with paragraph 1 of this Article. This obligation does not apply to cover or concealment practices associated with normal personnel training, maintenance or operations involving conventional armaments and equipment limited by the Treaty.

17. (3) Legal Instruments of Laws of Armed Conflicts 1907 Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention) 1977 Protocol Additional I to the Geneva Convention

18. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention)(1977) Art. I 1 --undertake not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party. 2---undertakes not to assist, encourage or induce any State, group of States or international organizations to engage in activities contrary to the provisions of the Art. I, para.1.

19. Definition of “environmental modification techniques” Art. II ---any techniques for changing – through the deliberate manipulation of natural processes - the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outerspace.

20. Protocol I Additional to the Geneva Convention (1977) Art. 36 New Weapons In the study, development, acquisition or adoption of a new weapon, means of or methodof warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.

21. Hague V Convention Art. 7 A Neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet. Art. 8 A Neutral Power is not called upon to forbid or restrict the use on behalf of belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals. Conditions: have to be impartiality applied to the both belligerents (Art.9)

22. Impartiality in Allowing Use of Communication Facilities • The liberty of a neutral State, if it so desires, to transmit messages by means of its telegraph, telephone, cable, radio, or other telecommunications facilities does not imply the power so to use them or to permit their use as to lend assistance to the belligerents on one side only.

23. Obligations on neutral states 1 impartiality to the belligerents 2 avoidance to let its territory use by the belligerents for the purposes of executing the armed conflicts 3 perseverance from the results of armed conflicts contrabands, blockade, etc.

24. 3 Asian perspective: What can be done Starting point: no satellite immunity provisions, no robust space cooperation mechanism (APSCO 2006～） regional security cooperation fragile no platforms on which space security could be enhanced Step1 better implementation of the 4 of the UN Space Treaties on Outer Space and related UN cooperative activities should be promoted (up to 2010) ex(1) space safety measures should come first. Regional cooperation for the effective implementation of the STSC Space Debris Mitigation Guidelines Ex2 (2) Regional Cooperation in space application based on the “Recommendations of the UNISPACE III” COPUOS)

25. Article IX of the OST can be applied for the ASAT experiments In the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of otherStates Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultationsbefore proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by anotherState Party in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment.

26. OST as confidence building measures Art. IX could be used for “space safety” in that space debris could be regarded as “potentially harmful interference” with foreign activities. In connection with that, some actions including ASAT experiments could be theoretically stopped by the international consultation and possibly. Not direct or clear provisions, but such could be developed into a new set of concrete rules.

27. Notes should be taken while engaging in the 1st step Space Debris Mitigation Guidelines (“space safety” )are not proxy to the space security measures 1 Using the ASAT weapons is not be categorically prohibited by the guidelines. 2 Space Debris Mitigation Guidelines are “soft law” not legally-binding.

28. Space Debris Mitigation Guidelines of the STSC of the COPUOS(annex IV, A/AC.105/890, 6 Mar.2007) Guideline 1 Limit debris released during normal operations Guideline 2 Minimize the potential for break-ups during operational phases Guideline 3 Limit the probability of accidental collision in orbit Guideline 4 Avoid Intentional Destruction and other harmful activities

29. (continued) Guideline 5 Minimize potential for post-mission break-ups resulting from stored energy Guideline 6 Limit the long-term presence of spacecraft and launch vehicle orbital stages in the low-Earth orbit (LEO) region after the end of their mission Guideline 7 Limit the long-term interference of spacecraft and launch vehicle orbital stages with the geosynchronous earth orbit (GEO) region after the end of their mission

30. Guideline 4 Avoid Intentional Destruction and other harmful activities Recognizing that an increased risk of collision could pose a threat to space operations, the intentional destruction of any on-orbit spacecraft and launch vehicle orbital stages or other harmful activities that generate long-lived debris should be avoided. When intentional break-ups are necessary, they should be conducted at sufficiently low altitude to limit the orbital lifetime of resulting fragments.

31. 2nd step Framework setting: lessons form the Conference on Disarmament:full of ideas, no tangible results 1 Definition failed “Space Weapons” ( space to space, space to earth, earth to space ? jamming?) 2 No legally-binding instruments have been adopted on space since 1979 (or 1984) Realistic goal until 2012 in Asia is confidence-building measures based on political commitment and civil space cooperation

32. What Asian region can borrow from the CD and other fora (up to 2012) Various proposals for confidence building (monitoring weapons in space and on the Earth, keep-distance between space assets, notification system) One of the latest proposal CD/1785 (21 June 2006) Canada Space-based verification: PAXSAT A (resurrected idea; originally in the 1980’s) International Satellite Monitoring Agency (ISMA) similar proposals have been submitted to the CD.

33. Regional satellite monitoring PAXSAT, ISMA type organization military uses of outer space strengthened surveillance functions In the Asian region, more realistic path is from collective environmental monitoring + disastermanagement → collective monitoring systems for space security purposes ←to make it possible, 1969 Parliamentary resolution (contents: self-imposed no-military =peaceful uses of space principle) should be appropriately addressed by the prospective Basic Space Act of Japan (to be shortly submitted to the Parliament)

34. Conclusion 1 Satellite monitoring environmental and military objects would enhance regional security based on the NTM experience between the superpowers and later in Europe. 2 Such monitoring involves “military” aspects. To make military space activities viable, regional security efforts in the various fields are necessary.

35. Possibility in Asia Confidence building measures “space safety” “space security” Soft law frameworks for the cooperative measures to better implement the provisions of Outer Space Treaty (1967)